The six were facing
criminal abuse of office for charges for allegedly failing to retire managing
director, Florah Nancy Sifeko, when her tenure of office lapsed.
They unsuccessfully sought to have the charges quashed
through an application for an exception to the charges in July last year.
But last week,
former board chairman Billy Rigava, his then deputy Rachael Chibaya, board
members Johnson Shonhe, Notburga Chifamba, Charles Maponga and Gerald Gore,
were a relieved lot after the superior court allowed their appeal.
A three-judge panel of Justices Lavender Makoni, Alfas
Chitakunye and Hlekani Mwayera, unanimously found merit in the appeal and
quashed the lower court’s judgment.
“The appeal be and
is hereby allowed. The judgment of the court a quo is set aside and substituted
with the following: (i) The application for review be and is hereby granted
(ii) the applicant’s exception to the charges relating to the contravention of
Section 174 (i) of the Criminal Law (Codification and Reform Act) Chapter 9: 23
be and is hereby upheld and the charges against the applicants be and are
hereby quashed,” read the judgment.
Mr Rodgers
Matsikidze, who instructed Advocate Lewis Uriri to argue the appeal for his
client Chifamba, described the Supreme Court ruling as ground-breaking.
“This is quite a
landmark ruling in that it dealt with the controversy around policy makers and
decision implementers,” he said.
“In particular, whether a policy maker who is a board
member can be charged with abuse of office on issues that require another
person to implement.
“More importantly the issue or where you draw a line
between abuse of office and mere omission.
“The matter dealt with issues of to what extent an
exception can be sustained. Overall, a good and sound judgment.”
The six approached the High Court last year on review of
regional magistrate Ms Estere Chivasa’s decision dismissing their request to
have the charges dropped.
It was their
argument that the exceptions taken were on the basis of that factually and
legally no offence was disclosed in the charge. The reasoning was that, an
extant judgment which they argue was binding existed and has pronounced that
Natpharm was not a public entity.
Its officers,
therefore, did not owe a public duty and could not be charged in terms of the
charge preferred.
But the prosecution
opposed the application arguing that the six could only raise an exception
where the charge fell short in terms of the provision of the law under which
they were being charged.
It was on that basis
that High Court judge Justice Phildah Muzofa found no misdirection on the part
of the trial court and threw out the application.
The judge ruled that
if the six alleged that the charge was based on falsehoods and that the
prosecution withheld facts known to it invariably means the court had to be
favoured with what the applicants allege is the truth.
This, she said,
could only be done through evidence and the court would have to interrogate the
veracity of each party’s evidence before a substantive decision is made.
In their application
at the High Court, the six’s contention was that the trial court failed to
consider a binding decision granted in NatPharm’s favour that had declared the
company to be privately-owned and thus did not have any public duty in relation
to the conduct of its officials and employees.
They argued, the
trial magistrate had erred in ordering the trial to proceed when it was
apparent that the factual basis on which the charge sheet was based was false.
Herald
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